A tale of two bigwigs in two judicial systems

Recently, the Scotland Yard dropped ‘inciting violence’ charges against Altaf Hussain and Sindh High Court removed Musharraf’s name from ECL. Barrister Ameer Abbas Ali Khan explains the two cases against two powerful men: Musharraf & Altaf, in two judicial systems: Pakistan and UK and how their cases will take shape in future.

Due to the differential treatment of rich and poor, the masses of Pakistan are resented so much that they have lost confidence in the system completely. And that’s the reason people have different perceptions about two different legal systems, one being UK trying Altaf Hussain and the other one of Pakistan trying General (R) Pervez Musharraf. Both are extraordinary people in their own way facing laws in two different states.

When it comes to Altan Hussain being investigated by the UK authorities, it is a general belief that he will not be able to get off the hook and will be dealt with strictly by the law as in the UK law is applicable equally to everyone, be it rich or poor.

However, when it is about General (R) Pervez Musharraf, who is facing serious allegations including murder and high treason in Pakistan, almost everyone believes that his trial is just a sham and he will fly off from Pakistan for never to come back. This is so because little faith is present in the people of Pakistan regarding their judicial system.

And this is despite the fact that Altaf Hussain has not even been formally charged in the UK for any of the three alleged offences of murder, money laundering and inciting violence which allegedly took place in 2010, 2012 and 2013 respectively.

On the other hand, in Pakistan, General (R) Musharraf has not only been formally charged with some serious offences but has been kept under detention for a long time and is on Exit Control List (ECL) as well. And, apparently, this too happened with a lot of opposition from the ‘strongest institution’ in Pakistan.

The irony is that the focus has always been on the General’s flight from Pakistan instead of appreciating the fact that, so far, the law has taken its course.

Analysing briefly these two sets of facts, don’t we think that we should have a bit of confidence in Pakistan’s legal system? Not to mention the fact that the man in question is not an ordinary person but the ex-Chief of Army Staff, ex-Chief Executive and ex-President of Pakistan.

As for Altaf Hussain, UK police are still investigating murder and money laundering offences. According to his party, UK police have decided not to pursue the offence of inciting violence. This offence of inciting violence against him arose in May 2013 when, after the May 11 general elections, Altaf allegedly threatened the Teen Talwar protestors of PTI gathered in Karachi with violence during his live speech made from the UK. In his speech, he stated: “main laraee jhagra nahee chahta warna tau may apnay satheon ko kahoon tau woh Teen Talwar pohanch kar talwaron ko asal shakal day dain gey”. A possible English translation is: “I don’t want to fight or quarrel, but if order my supporters now, they will go to Three Swords and turn these into real swords.”

Since such speech was made from the UK, a complaint was made to the UK authorities who after their investigation decided on 11 June 2014 that there was not sufficient evidence to establish a case against Altaf Hussain and therefore no further action will be taken against him.

After such a decision not to prosecute him for ‘inciting violence’, some started to suspect that Altaf Hussain might have used his influence over the UK authorities for this matter to be ended. If their suspicions are true then what an explanation could be for there for the UK police to arrest him for the offence of money laundering only a week earlier?

There may be many instances when one feels so strongly about a particular case that one is not prepared to accept a judicial decision contrary to one’s own perceptions. Unfortunately, in the eyes of law, decisions are taken purely on the basis of evidence and that’s the reason that a sense of disappointment is sometimes felt when we hear that court let the alleged terrorist go free. Particularly, in criminal cases the evidence required must be so strong that it is beyond a reasonable doubt for the suspect to have committed the alleged offence.

Then there are also rules on evidence that only certain pieces of evidence are admissible at court. The whole purpose of these rules to be in place is to ensure that no innocent person gets punished even at the expense of a criminal not facing music for his actions.

To ensure a balance is struck in prosecuting people, there is a mechanism in the UK through which a case goes by before a decision to prosecution is made. Going by that mechanism, Altaf Hussain’s case of inciting violence would have gone through the two-stage test as well, namely whether or not there is a sufficient evidence for a realistic prospect of him getting convicted at court; and if such evidence does exist then the next stage is if it is in the public interest to prosecute him.

Now bearing in mind that the allegation of inciting violence was merely on the basis of his speech at Teen Talwar, the possible evidence against him would have been his own speech which would be available on record. The crux of his speech, “main laraee jhagra nahee chahta warna tau may apnay satheon ko kahoon tau woh Teen Talwar pohanch kar talwaron ko asal shakal day dain gey” starts with the denial of a fight and its second part is open to many interpretations.

Whatever the interpretation could be, the fact is that in his speech Altaf Hussain is not directly ordering his followers or party members to carry out any extreme act and therefore it would have been difficult for the prosecution to prove beyond reasonable doubt that Altaf Hussain intentionally or recklessly desired to kill, maim or cause a person or group of people immense fear for their personal safety through the threat of extreme violence or sought to provoke others to take this course. In other words, do we think that on the basis of the said speech, 12 members of the British jury would have found Altaf Hussain guilty of ‘inciting violence’?

Even if it is accepted that the ample evidence existed to secure a conviction against Altaf Hussain, it would have been very difficult for this case to pass the second test of public interest because people have a right to freedom of speech; and free speech includes the right to offend.

Therefore, it is not always necessary that behaviour that offends, shocks or disturbs people would constitute a criminal offence and the sorts of offences which have been successfully prosecuted go well beyond the voicing of an opinion, free speech or causing offence. Thus, had there been any violence at Teen Talwar after his speech, the outcome would have been different and decision to prosecute Altaf Hussain for ‘inciting violence’ may have been taken by the UK authorities.

Well, this could be one explanation for the UK police not to take further action against Altaf Hussain for ‘inciting violence’. And the same reasons, particularly lack of evidence, could be applicable to Scotland Yard’s decision not to prosecute Altaf Hussain back in 2007 for atrocities which took place in Pakistan and in particular the incident of 12 May 2007.

At least, one thing is for sure: Although no further action has been taken against Altaf Hussain ‘inciting violence’, he would have got the message that he needs to be careful and if any evidence comes before law he would not be spared at least in the UK.

And why the people of Pakistan should not feel resentment when State fails to take action against powerful ones and doesn’t investigate the matters like UK has done in the case of Altaf Hussain. It’s so unfortunate in Pakistan that even registering an FIR is an uphill task and mostly contacts are required or suo moto action is taken for a simple FIR and to ensure that matter is investigated properly.

It’s such an irony that even in this time and age people in authority dare not do their jobs as per the law and probably the support they get for their complete disregard for the law is from the State itself which at times attempts to derive undue advantage out of such a system as well.

But this ought to be changed now so that people of Pakistan can trust their own system and stop relying on others like UK to get justice. And this can be done and the first and foremost thing required is the State’s will to ensure that procedures are followed strictly.

For example, we have the case of General (R) Pervez Musharraf who possibly never thought of going through the Pakistani legal system when he decided to return to Pakistan in March last year.

Despite considerable opposition, possibly both from within and outside the country, the State has not given in and all it has done so far is ensuring that procedures are followed as per the book. And we have seen that by just following procedures, serving of justice becomes very easy and it gets very difficult for General (R) Pervez Musharraf to walk out of it so smoothly. Though, it’s a separate issue that these procedures need to be simplified for a common man to get justice cheaply and timely.

We all have seen the way General (R) Pervez Musharraf’s matters are being dealt with including issuance of his arrest warrant and his subsequent appearance before the court in relation to the treason matter. The law has definitely shown its force but soon after the Sindh High Court’s (SHC) decision to strike down the placing of General (R) Pervez Musharraf on Exit Control List, it appeared to some that law has lost its grip on the General.

As a student of law, I would tend to disagree with it on the basis that all the SHC has done is given judgment in accordance with the law and declares with legal reasoning that the placing of General (R) Pervez Musharraf on ECL is illegal. The decision of SHC may be wrong and, now that the appeal is with the SC, this is for the Supreme Court to decide.

But the important point to note is that the SHC suspended its own decision, which was self-executory, for 15 days in order for appeal to be made before the Supreme Court. The SHC did not have to suspend the operation of its own judgment and had it not done so there was probably nothing stopping General (R) Pervez Musharraf from travelling abroad and by the time such decision of SHC had been appealed to the Supreme Court he would have already exited Pakistan.

The government has appealed against SHC decision and the Supreme Court is now to determine the legality of such a decision and therefore the fate of General (R) Pervez Musharraf to travel abroad is very much dependent upon the decision of the Supreme Court of Pakistan.

Though the allegations faced by General (R) Pervez Musharraf are very serious in nature and one may feel so strongly about them, the court has to determine his bail or ECL issue on the basis of law and evidence. The mere fact that one is facing very serious allegation cannot be on its own a valid reason to refuse bail or justify putting him on ECL.

It is mainly the strength of evidence, not the media trial, which determines the grant of bail. The issue of absconding would also be relevant but that would have to be balanced with the strength of evidence for securing a conviction as it’s not in accordance with the jurisprudence of law to base decisions on assumptions and the other thing that may go in favour of General (R) Pervez Musharraf is his arrival to Pakistan out of his own will.

Even if General (R) Pervez Musharraf is able to travel abroad, the game will not be over for him and his cases may continue in his absence. And let us not forget the cases of Shahrukh Jatoi and Tauqir Sadiq who were made to return from abroad at the orders of Supreme Court.

The fact is that the prosecution of General (R) Pervez Musharraf has already started and it would be easier for him in the long run to get his cases clear through courts than to live in exile as an absconder especially when so much media attention is attached to his cases. And him being an extraordinary person, it would not be easy for him to hide in some remote place, and subject to certain restrictions the State could also initiate extradition proceedings.

The positive thing out of General (R) Pervez Musharraf’s case is that no influential person like him has ever been prosecuted in Pakistan or for the types of offences he is facing, and at least we can say that until today the state has shown its utmost will to prosecute General (R) Pervez Musharraf and this shows that when the state wills things can be done and now it is to ensured that the state keeps following such will not only in the case of General (R) Pervez Musharraf but across the board.

As for the people in Pakistan, things may appear to be in a complete mess but something is ought to be done to make the house in order. The starting point for the people could be having some confidence in the state institutions, particularly judiciary.

An Abdalian and Aitchisonian, Barrister Ameer Abbas Ali Khan, is a Solicitor-Advocate (UK), Advocte High Court. He has LLB (Hons) UK, LLM (LSE), Bar-at-Law from Lincoln Inn, and lives in London. His father has been an MP in Pakistan over several decades